One expert testified in the Massachusetts court that he cancelled the AOL 5.0 installation and did not accept the TOS, but “his computer configuration had already been ‘extensively modified’ and his ‘previously working internet connection was rendered non-functional’. . . .”

AOL responded by noting that plaintiffs were already AOL subscribers when they installed Version 5.0, and the earlier TOS also included the forum selection clause. To this assertion, Judge Hinkle stated:

“

[T]he fact that plaintiffs may have agreed to an earlier TOS or the fact that every AOL member enters into a form of TOS agreement does not persuade me that plaintiffs and other members of the class they seek to represent had notice of the forum selection clause in the new TOS before reconfiguration of their computers.

”

And, she continued, “Public policy suggests that Massachusetts consumers who individually have damages of only a few hundred dollars should not have to pursue AOL in Virginia.” A third factor was that the MDL Panel had transferred all of the federal cases to Florida. “If AOL can make its witnesses and documents available in Florida for every federal case, defending this action is Massachusetts should cause AOL no harm.”